Summary: The Ombudsman will not investigate whether damage to a car which hit a drain in the road was caused by Transport for London’s negligence. This is a matter for the courts to decide.

The complaint

1. The complainant, who I refer to here as Mr B, complained his car was damaged when it hit a drain in a road maintained by Transport for London (TfL) . He asked TfL to pay for the damage but it has refused to accept liability.

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The Ombudsman’s role and powers

2. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

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How I considered this complaint

3. I have considered what Mr B said in his complaint. Mr B commented on a draft before I made this decision.

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What I found

4. Mr B’s complaint is in effect that TfL has been negligent. Adjudication on questions of negligence usually involves making decisions on contested questions of fact and law which need the more rigorous and structured procedures of civil litigation for their proper determination. In addition, only a court can decide if a council has been negligent and what damages must be paid.
5. We cannot decide whether TfL has been negligent and have no powers to enforce an award of damages. For this reason, we would usually expect someone in Mr B’s position to seek a remedy in the courts, directly or through his insurers.

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Final decision

6. We will not investigate this complaint because Mr B can seek a remedy in the courts.

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Investigator's decision on behalf of the Ombudsman